A Milpitas resident has filed a lawsuit against the mayor and two City Council members that alleges they violated the state election code by refusing to put a ballot initiative advanced by three residents up for voter consideration this November.

Mayor Jose Esteves and Councilwomen Debbie Indihar Giordano and Marsha Grilli are the three defendants named in the lawsuit filed by plaintiff Rob Means in Santa Clara County Superior Court on Oct. 27 for their “yes” votes to take no action on the resident-backed water rate initiative aimed at returning the city to a tiered-water rate system, instead of the uniform rate implemented by the city last December. Many residents have complained that their water bills have increased dramatically since the new rates took effect.

At the Aug. 2 council meeting, City Attorney Christopher Diaz told the panel that it could choose to adopt the tiered water rates suggested by residents, choose to put the initiative to voters in November, or to take no action at all because the tiered rates being suggested by the three residents — Robert Marini, Jennifer Strohfus and Martin Skelson — were deemed “illegal.”

Diaz further warned the council all three options presented could potentially open the city to further legal action. At that meeting, the council voted 3-2, with Vice Mayor Carmen Montano and Councilman Garry Barbadillo dissenting, to effectively quash the initiative.

Following the California Supreme Court’s decision last year to find the city of San Juan Capistrano’s tiered water rate system illegal — where residents who used more water were charged more money — cities across the state including Milpitas opted to dissolve their tiered water rate systems in favor of uniform water rates.

The San Juan Capistrano decision only allows tiered systems where customers are paying the actual cost of buying and providing water. City Manager Tom Williams said Monday that the city’s tiered system had been set up to get residents to use less water by charging more for more usage and that it did not actually reflect the cost of purchasing and providing water to residents.

Means’ lawsuit was filed less than two weeks before the election in which Indihar Giordano is campaigning to replace Esteves as mayor of Milpitas, when he terms out this year. Means said that although he was not in favor of Indihar Giordano, the lawsuit was not a politically motivated, election-year shenanigan.

“It’s been in the works for me since city council prevented this measure from going on the ballot … they kept it from going on the ballot in violation of election code, there is no third option — either you pass it into law or you put it on the ballot,” Means said. “I am suing them to put it on a special ballot next year.”

Means, a former city council and mayoral candidate here, said the lawsuit was not about the particulars of the tiered water rate being suggested by residents, but about “short-circuiting the democratic process” and not allowing “the people when their representatives are screwing up to put something forward and have it voted on by voters, put it to ‘we the people.’”

He added it was his hope that the next city council would see that a wrong had been done and hold a special election for the ballot measure.
Means had Marini serve Grilli, Esteves and Indihar Giordano with lawsuit during Tuesday’s city council meeting.

Means added the first court date for his case, which will be a case management conference, was scheduled to take place on Feb. 21 at Downtown Superior Court, 191 N. First St. in San Jose.

Reached by phone on Oct. 27, Indihar Giordano said she was surprised by the lawsuit and noted that she had not seen or heard about it. Still, she questioned the lawsuit’s timing so close to the election.

“Why wasn’t this filed sooner?” after the vote was taken, Indihar Giordano asked.

Means rebutted that since August he had looked for others — including the three proponents of the initiative and the American Civil Liberties Union — to take on filing a lawsuit against the city. But finding none Means said he filed it himself.

Also on Oct. 27, Diaz said that there is precedent in case law that says that a city does not have “to follow election code if it violates state law.”

“We would have expected a lawsuit to have been done in August because the timeline to get something on the ballot was mid-August,” Diaz said, questioning the motive for filing the lawsuit right before the Nov. 8 election. “If they had filed a lawsuit then the court and judge would have taken precedent on it because they want to get it resolved before the election deadline.”

Still, Diaz said his Walnut Creek law firm Best, Best & Krieger LLP — retained by the city last year as its contract legal adviser — was ready to represent the council and the mayor.

On Friday, Grilli said by email that she had nothing to say about Mean’s lawsuit and would let Diaz handle the matter.
For his part, the mayor also responded to the lawsuit.

“Milpitas City Council acted properly by taking no action on a petition for a ballot initiative this summer,” Esteves said by email on Friday. “The ballot initiative, as written, would have forced the city to implement a tiered water-rate system with no legal justification as to how the rates were determined. This would be in violation of state law and the state constitution. By opting to take no action on the petition, council avoided violating the law while honoring their sworn oath of office — to uphold the state constitution.”

Aliyah Mohammed covers local government, education, breaking news and community issues in Milpitas and Fremont. She is also the web and social media coordinator for the Milpitas Post and Fremont Argus. Aliyah has been working for Bay Area News Group since 2013. She graduated from U.C. Berkeley with a double bachelors in English and media studies in 2013. Aliyah loves coffee, traveling, soccer and being a devoted bibliophile.

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